Scalia dissents

And today it is not just the military that the Court elbows aside. A mere two Terms ago in Hamdan v. Rums­feld, 548 U. S. 557 (2006), when the Court held (quite amazingly) that the Detainee Treatment Act of 2005 had not stripped habeas jurisdiction over Guantanamo peti­tioners’ claims, four Members of today’s five-Justice major­ity joined an opinion saying the following:

“Nothing prevents the President from returning to Congress to seek the authority [for trial by military commission] he believes necessary.

“Where, as here, no emergency prevents consulta­tion with Congress, judicial insistence upon that con­sultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine— through democratic means—how best to do so. The Constitution places its faith in those democratic means.” Id., at 636 (BREYER, J., concurring).

Turns out they were just kidding.

For in response, Con­gress, at the President’s request, quickly enacted the Military Commissions Act, emphatically reasserting that it did not want these prisoners filing habeas petitions. It is therefore clear that Congress and the Executive—both political branches—have determined that limiting the role of civilian courts in adjudicating whether prisoners cap­tured abroad are properly detained is important to success in the war that some 190,000 of our men and women are now fighting. As the Solicitor General argued…“the Mili­tary Commissions Act and the Detainee Treatment Act represent an effort by the political branches to strike an appropriate balance between the need to preserve liberty and the need to accommodate the weighty and sensitive governmental interests in ensuring that those who have in fact fought with the enemy during a war do not return to battle against the United States.”